WHETHER AN ATTORNEY WHO IS IN THE GENERAL ASSEMBLY CAN PREPRESENT
PRIVATE PARTIES BEFORE LOCAL GOVERNING BOARDS

You have presented a hypothetical involving the private law practice of the firm of a member of
the General Assembly. Specifically, members of the firm represent private clients who regularly
appear before local Boards of Supervisors, Town Councils, and Boards of Zoning appeals in
connection with legislative matters including re-zoning applications, special exception
applications, zoning variances, and zoning determination appeals. Also, members of the firm
work with the staff of a locality to process ministerial applications, such as site and subdivision
plans.

Generally, you raise questions of whether these activities are in ethical conflict with the election
of a firm member to the General Assembly. Specifically, you ask whether the attorney, who is a
member of the General Assembly, or any member of his firm, may represent clients before any
of these local bodies.

Your hypothetical raises the underlying issue of whether membership in the General Assembly
combined with representation of private clients in local government matters triggers an
impermissible conflict of interest under the Rules of Professional Conduct. Conflicts faced by
firms with legislator members was addressed recently in LEO 1763, which was, in effect, a
reconsideration of LEO 1718, which had been decided under the former Code of Professional
Responsibility. In LEO 1763, the presenting scenario was that of members of a local
government board member=s law firm representing clients before thatsame board. In LEO
1763, this committee reiterated its conclusions from 1718, namely, that an impermissible
conflict of interest would be triggered by the partner=s representation before the board and that
the conflict could not be Acured@ by recusal of the attorney/board member from the particular
matter. Thus, you ask whether that same conclusion must be drawn for the scenarios you present
involving various local government entities, where no attorney in the firm sits on such local
government bodies.

A careful review of LEO 1763 reveals that the focus of the committee=s analysis was whether the
conflict of interest created by an attorney appearing before his own board should be imputed so
as to prevent his partners from appearing before his board, and, if so, whether the resulting
conflict could be Acured@ by the attorney/board member=s recusal from the particular matter. The
committee concluded first that the conflict must be imputed to all members of the firm and
further that recusal would not cure the problem as recusal would violate the attorney/board
member=s obligations to his constituents. Rule 1.11, Comment 1 says, in pertinent part, AA
lawyer who is a public officer should not engage in activities in which his personal or
professional interests are or foreseeably may be in conflict with official duties or obligations to
the public.@ Thus, the opinion concludes that as recusal is not an effective conflicts cure, no
partner of a board member may represent clients before the board.

What the analysis of LEO 1763 does not focus on is the nature of the basic underlying conflict of
interest. In that opinion, the basic conflict (that is then imputed) was that a board member may
not represent clients before his own board. That such representation would trigger an
impermissible conflict is, in effect, so obvious as to be a given throughout the opinion=s
discussion of the conflict=s imputation and cure. It is of guidance for your present request to step
back and address the source of that underlying conflict in LEO 1763. Rule 1.7 prohibits
representing a client where that representation may be materially limited by the lawyer=s own
interests, unless he reasonably believes that the representation will not be adversely affected (and
the client consents). In addition, Rule 1.11(a) prohibits an attorney who is a public official to
use that position to the advantage of his client. Relatedly, Rule 8.4 (d) prohibits an attorney
from stating or implying the ability to improperly influence a government entity or official.
Those rules, taken together, render it impermissible for a lawyer to ever represent a client before
a board upon which the attorney sits; such a representation would be problematic in that the
attorney=s role as a board member creates both general duties to the public and a unique position
of influence for his client. Thus, the committee opines that such representation is per se
impermissible and, as outlined in LEO 1763, is imputed to all other members of the firm.

Do those same rules also create an impermissible conflict in your outlined scenarios? The
committee concludes that they do not. No member of the firm serves on any of the local bodies
of the localities in question. Thus, when a firm member seeks action on behalf of one of those
bodies for a client, he is not seeking action from the very body to which a firm member belongs.
So long as the attorneys do nothing in violation of the influence provisions of Rules 1.11 and 8.4,
outlined above, this committee does not deem them prohibited from entering into the activities
involving various local bodies identified in your request. As outlined in those rules, the
legislator has an affirmative duty to refrain from using his position to influence any tribunal for
the benefit of this clients, and to refrain from implying that such influence is available. This
committee declines to extend the analysis recently set out in LEO1763 to any of the activities
outlined in your request.

This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.